JOHN DOE SEX OFFENDER REGISTRY BOARD NO 526937 v. SEX OFFENDER REGISTRY BOARD (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner, John Doe, appeals from a Superior Court judgment affirming his classification by the Sex Offender Registry Board (SORB) as a level two offender. We affirm.

Background. We summarize the facts as found by the hearing examiner, “supplemented by undisputed facts from the record,” and reserve certain facts for later discussion. Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 606 (2011) (Doe No. 10800).

Over a period of approximately ten months, Doe, then fifty-four years old, repeatedly sexually assaulted the victim -- an intellectually disabled, twenty-seven year old woman -- while Doe was working in his capacity as the victim's supervisor at a residential care facility. The victim described having to masturbate Doe in a company van parked in a public lot while they were purportedly running work errands. After a jury trial, Doe was convicted of three counts of indecent assault and battery on a person with an intellectual disability and one count of indecent assault and battery; he was found not guilty of rape.

Despite the acquittal on the rape charge, the hearing examiner determined that there was “sufficiently reliable and credible evidence” to find as fact the additional sexual misconduct that Doe penetrated the victim's vagina with his penis on two occasions. The examiner credited the victim's statements describing sexual acts between herself and Doe in which she was on top of Doe and “rode his penis,” “like riding on a horse,” while they were in the van. She described what she was wearing on both occasions and where the acts occurred.

Discussion. Doe contends that the hearing examiner erred in “crediting uncorroborated hearsay evidence presented through police reports that did not bear ․ indicia of reliability,” referring to the victim's statements as documented by the police in their reports. These statements, describing repeated instances of “penile/vaginal penetration,” led the examiner to apply factor 19 (level of physical contact) and factor 37 (other information related to the nature of the sexual behavior). Doe also contends that the hearing examiner erred in applying factor 7 (relationship between offender and victim), because the examiner referenced Doe's position as the victim's supervisor when analyzing his risk to reoffend; he argues that factor 7 limits the “position of trust” element to a consideration of dangerousness. Doe argues that, if factors 7, 19, and 37 were excised from the analysis, the evidence would be insufficient to support a level two classification.

“In our review of an agency's decision for an abuse of discretion, we consider ‘whether the decision was reasonable.’ ” Doe, Sex Offender Registry Bd. No. 6969 v. Sex Offender Registry Bd., 99 Mass. App. Ct. 533, 537 (2021), quoting Doe, Sex Offender Registry Bd. No. 209081 v. Sex Offender Registry Bd., 478 Mass. 454, 457 (2017). “In reviewing SORB's decisions, we ‘give due weight to the experience, technical competence, and specialized knowledge of the agency.’ ” Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 602 (2013), quoting G. L. c. 30A, § 14 (7). “The decision may only be set aside if the court determines that the decision is unsupported by substantial evidence or is arbitrary or capricious, an abuse of discretion, or not in accordance with law.” Doe, Sex Offender Registry Bd. No. 356011 v. Sex Offender Registry Bd., 88 Mass. App. Ct. 73, 76 (2015), quoting Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 787 (2006).

1. Statements of victim. “A hearing examiner is not bound by the rules of evidence applicable to court proceedings.” Doe No. 10800, 459 Mass. at 638. “[T]he examiner may admit and give probative effect to evidence ‘if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs.’ ” Id., quoting G. L. c. 30A, § 11 (2). In a SORB proceeding, “hearsay evidence bearing indicia of reliability constitutes admissible and substantial evidence.” Doe No. 10800, supra. To determine reliability, the examiner must consider the circumstances in which the statements were made, including “the general plausibility and consistency of the ․ witness's story, the circumstances under which it is related, the degree of detail, the motives of the narrator, the presence or absence of corroboration and the like” (citation omitted). Doe, Sex Offender Registry Bd No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 89 (2019) (Doe No. 523391). See Doe, Sex Offender Registry Bd. No. 136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 649-650 (2012); Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 313 (2007). On appeal we consider whether “it was reasonable for the examiner to admit and credit the facts described in the hearsay evidence” (quotation and citation omitted). Doe No. 523391, 95 Mass. App. Ct. at 89.

We discern no error with respect to the examiner's consideration of the victim's statements describing Doe's penetrative sexual acts. The victim explained what happened, what she was wearing, and where the acts occurred. She disclosed two instances of penetration to her mother and then again during a Sexual Assault Intervention Network forensic interview. Although she sometimes gave nonresponsive answers to questions, she remained consistent that there were two instances of penetration. The hearing examiner could have taken into account the victim's intellectual disability and still found her account to be credible. The hearing examiner did not err in admitting and crediting the victim's depiction of the penetration. See Doe No. 523391, 95 Mass. App. Ct. at 90 (hearing examiner's reliance on victim's account in police report reliable where events surrounding assault described in detail). Accordingly, the examiner did not err in applying factors 19 and 37. Cf. Doe, Sex Offender Registry Bd. No. 2218 v. Sex Offender Registry Bd., 96 Mass. App. Ct. 738, 742-743 (2019) (Doe No. 2218).

2. Application of factor 7 (relationship between offender and victim) to risk of reoffense. Doe maintains on appeal that the level two classification was not supported by substantial evidence because the examiner erred in considering factor 7 in her analysis of Doe's risk of reoffense. We disagree. To begin, as Doe concedes, this issue was not raised below and is therefore waived. See Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 57-58 (2010).

But, even if we were to consider the issue, we would conclude that Doe's argument is without merit. “The relationship between an offender and the victim is an important variable in determining risk of reoffense and degree of dangerousness.” 803 Code Mass. Regs. § 1.33(7) (2016). The examiner engaged in a careful analysis of the applicability of factor 7: she concluded that the factor was applicable because “[Doe], an employee of a day program for people with disabilities, sexually assaulted a 27-year-old female participating in the program,” and that “[Doe] committed these offenses in his role as the [v]ictim's direct supervisor.” Consistent with 803 Code Mass. Regs. § 1.33(7) (2016), the examiner determined that factor 7 was relevant to Doe's risk of reoffense because the victim was extrafamilial and further determined that because Doe committed the offenses in a position of trust, it increased his dangerousness. We discern no error. See Doe No. 2218, 96 Mass. App. Ct. at 742 (“[a] hearing examiner has discretion ․ to consider which statutory and regulatory factors are applicable and how much weight to ascribe to each factor”).

Judgment affirmed.